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Why the Justice Department is suddenly investigating affirmative action

Investigating a years-old complaint could signal a shift in two decades of Justice Department support for affirmative action at colleges.

by Taylor Dolven
Aug 3 2017, 2:35pm

The Department of Justice is looking for lawyers to investigate a 2015 complaint against Harvard University for anti-Asian-American discrimination in its admissions policy, according to a statement from the department on Wednesday.

The call to investigate the years-old complaint could signal a shift in two decades of DOJ support for affirmative action at colleges and a potential avenue to undermine the use of race in admissions, meant to benefit minority applicants.

In 2015, a coalition of 64 Asian-American organizations filed a complaint with the DOJ and Department of Education alleging that Harvard holds Asian applicants to higher standards than other minority applicants. At the time, the Department of Education under President Obama dismissed the complaint due to ongoing litigation over the same issue — a federal lawsuit pending against Harvard on behalf of two Asian-American students.

The Department of Justice said Wednesday, however, that the decision left the complaint “unresolved.” Aside from investigating the complaint, the DOJ is also considering litigation, according to an internal job posting for lawyers obtained by the New York Times.

“Whenever there’s a credible allegation of discrimination on the basis of race, the department will look into it,” a spokesperson for the DOJ said in an email Wednesday.

Discrimination in admissions, however, is already being adjudicated in federal court and long-investigated as part of the work of the DOJ’s Education Opportunities Section. Anurima Bhargava, who served as chief of that department under Obama, called the DOJ’s sudden efforts “peculiar, at best.”

“The only possible remaining issue [is] whether and how the Justice Department might want to engage in the [2014] federal court case in which the United States does not currently have a role,” she said in an email.

Career officials in the Justice Department civil rights division refused to be a part of the new legal effort, two people familiar with internal discussions there told the Washington Post, which spurred DOJ leadership to recruit lawyers for the job via an internal posting.

Aside from doubling up on litigation, an effort to sue schools or denounce the use of race in admissions — as the job posting implies — signals a potential deviation from Justice Department policy toward affirmative action. When weighing in on affirmative action lawsuits over the past two decades, the DOJ has taken the position that schools should be able to consider race in their admissions processes.

“The goal is not to litigate cases; the goal is to fix problems happening in schools,” Bhargava said. “The Justice Department hasn’t brought a complaint in federal court about racial discrimination in decades. This is a way to scare universities from doing what they are being repeatedly told by the Supreme Court that they can do.”

“The goal is not to litigate cases, the goal is to fix problems happening in schools.”

A little more than a year ago, the Supreme Court upheld affirmative action in college admissions in a 4-3 decision. (Justice Elena Kagan did not participate.) That case centered around Abigail Fisher, a white woman who argued the University of Texas denied her admission in 2008 in favor of less-qualified black and Hispanic students. The court sided with the university.

The Fisher decision built on two 2003 Supreme Court cases against the University of Michigan with similar circumstances. In all the cases, the DOJ filed amicus briefs defending the consideration of race in admissions.

While these Supreme Court decisions solidified universities’ right to use race in admissions in a limited way, the court has also upheld states’ right to ban racial preferences in public university admissions as Michigan did in 2006.

“Affirmative action has survived, but it’s hanging really by a thread,” said Ian López, a law professor at the University of California, Berkeley.

Conservative groups like Students for Fair Admissions — which supported Fisher, the woman who sued the University of Texas — continue to sue universities over their admission policies. The group is behind the pending lawsuit against Harvard and a similar one against the University of North Carolina.

Roger Clegg, the president of conservative think tank Center for Equal Opportunity, which opposes race-based admissions, welcomed the Justice Department investigation announced Wednesday.

“It’s long overdue,” he said. “Most Americans don’t like racial preferences.”

He also hopes the Justice Department will support the plaintiffs in the Harvard and UNC cases with amicus briefs, which could officially change government’s attitude toward affirmative action.

“It makes perfect sense for the federal government to ensure that no institution is engaging in racial discrimination,” he said.